The U.S. Supreme Court’s recent ruling striking down the Trump-era ban on firearm bump stocks indicates a welcome evolution away from judicial activism and consequentialism and toward legislative supremacy and textualism under Chief Justice John Roberts.
In Garland v. Cargill, the Court ruled 6-3 that the Bureau of Alcohol, Tobacco, Firearms, and Explosives went beyond its authority in 2018 when it defined firearms with bump stocks as machine guns. Federal law bans the possession and sale of machine guns, but not semiautomatics.
The Justices engaged in an intense debate over the language of the law on which the regulation was based. Although the Justices commonly pay serious attention to the wording of the laws under consideration in their cases, the writings in Garland v. Cargill reflect an extraordinary amount of attention to the exact meanings of words and phrases in the statute in question.
“Section 5845(b) defines a ‘machinegun’ as any weapon capable of firing ‘automatically more than one shot… by a single function of the trigger,” Justice Clarence Thomas wrote for the majority. “We hold that a semiautomatic rifle equipped with a bump stock is not a ‘machinegun’ because it cannot fire more than one shot ‘by a single function of the trigger.’ And, even if it could, it would not do so ‘automatically.’”
The dispute might seem somewhat arcane, with Justices parsing words so minutely. It is, however, exactly what the Supreme Court should be doing. Any justification for government action — in this case a ban on a firearm accessory — should have to meet the strictest requirements for clarity and accuracy.
For many decades, however, the Supreme Court regularly took a consequentialist approach, basing its decisions on what political outcomes the various justices wanted to achieve, a practice known as judicial activism. Justices essentially made policy decisions through their rulings, and judges in lower courts did likewise in the hope that the Supreme Court would affirm them because they desired the same results.
That is not the Courts’ role under the constitution. As attorney Caroline Bermeo Newcombe noted in a 2022 article in the Missouri Law Review, “when a court takes on the role of statutory interpreter, its role is subordinate to that of the legislature… The doctrine is designed to preclude ‘judicial policymaking’ when a statute [is] clear.”
That doctrine is called legislative supremacy, and the judicial approach that puts it into action is called textualism. “[T]extualist judges believe that they should still follow the text of a statute, even if they may not personally like the result of a decision they make,” Newcombe writes.
Justice Samuel Alito powerfully expressed this view in his concurring opinion in the bump stock case, writing, “The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending. But an event that highlights the need to amend a law does not itself change the law’s meaning.”
Justice Kavanaugh wrote.
To be sure, not everyone on the Roberts court has fully overcome the temptation toward judicial activism. In what The Hill described as “a fiery dissent” that “harshly denounced” the Court’s decision, Justice Sotomayor boorishly accused the majority of handing guns to mass murderers: “Today, the Court puts bump stocks back in civilian hands… Today’s decision to reject that ordinary understanding [of the statute’s wording] will have deadly consequences. The majority’s artificially narrow definition hamstrings the Government’s efforts to keep machineguns from gunmen like the Las Vegas shooter.”
That is not the Court’s job, however, and a Supreme Court Justice should know that. Still, although Sotomayor’s distasteful mischaracterization of the Court’s majority exposes her desire to bend the law toward her preferred outcome, in which she is joined by Justices Kagan and Jackson, much of their written dissent is in fact devoted to painstaking analysis of the text of the law and rule in question. For example, “The majority’s logic,” Sotomayor writes, “simply does not overcome the overwhelming textual and contextual evidence that ‘single function of the trigger’ means a single action by the shooter to initiate a firing sequence, including pulling a trigger and pushing forward on a bump-stock-equipped semiautomatic rifle.”
Similarly, Sotomayor writes, “The majority’s reading flies in the face of this Court’s standard tools of statutory interpretation. By casting aside the statute’s ordinary meaning both at the time of its enactment and today, the majority eviscerates Congress’s regulation of machineguns and enables gun users and manufacturers to circumvent federal law.”
Although the media have characterized the bump stock decision as a split along political lines — which it certainly was in terms of which presidents appointed the various justices — of far greater importance is its basis in the difference between textualism and consequentialism and between judicial activism and legislative supremacy. The Court’s decision in Garland v. Cargill marks a much-needed change from a century-plus of courts legislating from the bench.
S. T. Karnick (https://stkarnick.substack.com/) is a senior fellow and director of publications for The Heartland Institute, where he edits Heartland Daily News and writes the Life, Liberty, Property e-newsletter.
Image: SupremeCourt.gov
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